FIRST SECTION

Application no. 362/11 Ljube GLIGOROVSKI against the former Yugoslav Republic of Macedonia lodged on 17 December 2010

STATEMENT OF FACTS

The applicant , Mr Ljube Gligorovski , is a Macedonian national , who was born in 1949 and lives in Skopje . He is represented before the Court by Mr I. Simonoski , a lawyer practising in Ohrid .

A. The circumstances of the case

The facts of the case , as submitted by the applicant , may be summarised as follows.

The applicant was a pulmonologist in Skopje Hospital (“the Hospital”). On 19 April 2010 at 9 , 30 a.m. the applicant (and 36 other persons) was arrested and brought in Skopje Court of First Instance (“the trial court”). In written submissions of that date , the public prosecutor requested that the investigating judge open an investigation in respect of all persons concerned on the reasonable suspicion of abuse of office and their involvement in organised crime. They were accused that between 2008 and March 2010 they had acted as a group , which aim had been to find persons who would pay money in return for medical evidence to be used in proceedings for disability pension or other related allowances. The income that the group allegedly had obtained amounted to 171 , 120 Euros (EUR). It was also requested that the accused were remanded in custody.

As stated in the detention order issued the next day (see below) , on 19 April 2010 a separate minutes was drawn up stating that the applicant had been informed about the public prosecutor ’ s request for opening the investigation and the reasons justifying the detention on remand. In the application form , the applicant states that all accused were placed in the basement of the court building and , one by one , they were brought before the investigating judge who informed them of the reasons for detention. While in the court building , the applicant ’ s health deteriorated. At a request of the investigating judge , he was transferred at Emergency Unit in the Hospital. Soon after , he was transferred at Intensive Care Unit. It appears that on 20 April 2010 the investigating judge requested that the Hospital notify the court about the applicant ’ s health and whether he would be fit to give a statement. No such information had been communicated before the investigating judge ordered detention on remand.

On 20 April 2010 the investigating judge decided that investigation was opened against all accused. The applicant was charged for having issued on 12 May 2009 an invalid medical report concerning certain R.S. The investigating judge ordered , under section 199 § 1 (1) , (2) and (3) of the Criminal Proceedings Act (“the Act” , see “Relevant domestic law” below) , a thirty-day pre-trial detention in respect of all accused on account of a risk of absconding , reoffending and interference with the investigation. As stated in the decision , which runs altogether to eighty-one pages , the reasonable suspicion that the accused had committed the crime imputed to them , coupled with the income that they had unlawfully obtained , implied an increased risk of fleeing. Furthermore , the accused could go into hiding at their friends and members of family who had lived at different locations. It was further stated that the accused could destroy written evidence and influence witnesses against them.

As regards the applicant , it was stated that the gravity of charges and witnesses proposed against him justified his detention in custody. The investigating judge ordered that he was remanded in custody in Skopje detention facility ( КПУ Затвор Скопје ). The investigating judge further stated that:

“In view of the foregoing , there are still reasons for the (applicant ’ s) detention under section 199 § 1 (1) , (2) and (3) of the Criminal Proceedings Act. Having regard to his state of health and the impossibility to give a statement before the investigating judge i.e. to comment on the charges brought to his attention ... the accused (the applicant) should remain in the Hospital until there is a need for a continuing medical treatment.”

Lastly , he stated that the applicant had been lawfully detained and brought before him within twenty-four hours after the arrest.

According to a medical certificate issued on 20 April 2010 by the Hospital , the applicant was diagnosed as suffering f rom angina pectoris. A coronarography made that day indicated no anomaly ( уреден наод ). The applicant was discharged “at request of the competent authorities”. Medicaments were prescribed and medical control was suggested to be carried out after a month. Lastly , the applicant was advised a dietary regime.

The applicant appealed alleging lack of concrete and individual reasons for his detention. All co-accused were remanded in custody of same duration despite the fact that charges against them had been different. Since charges against the applicant had been less serious , the detention order placed a disproportionate burden on him. The applicant also submitted that he would never leave the State and his family irrespective of the potential penalty. In this connection he proposed that the court seizes his passport , orders release on bail or replaces his detention in custody with a house arrest. Lastly , he complained that his poor health should be taken into consideration.

On 22 April 2010 a three-judge panel of the trial court (“the panel”) , set up under section 22 § 6 of the Act , dismissed the appeal and confirmed the detention order , which was justified in view of the gravity of the charges against the applicant and potential penalty; there were many witnesses proposed for examination; the accused had acted as a well organised group and the applicant had not been dismissed f rom work. The latter had justified the fear of reoffending. As regards the applicant ’ s request for a more lenient measure , the panel stated that the security measures offered by him were:

“ ... not sufficient to secure (the applicant ’ s) attendance at trial i.e. they do not remove the danger that he may interfere with the investigation or reoffend.”

On 5 May 2010 the applicant gave oral evidence before the investigating judge. He denied any involvement in the crime and requested more lenient measure. On 18 May 2010 video material was presented to the accused. On that day , as stated by the applicant , the investigating judge examined R.S. The investigating judge also ordered expert examination of case-files related to social-benefit allowances relevant for the case.

On that date , the panel extended the detention of the applicant and all co-accused for thirty days. The order was based on all three counts specified under section 199 of the Act. It stated that:

“... all material and oral evidence admitted so far corroborate the reasonable suspicion that the accused had committed the crimes imputed on them. Having regard to the gravity of charges ... the type of the potential penalty ... as well as the possibility of imposing a prison sentence , the panel considers that there is a reasonable fear that the accused may abscond if released f rom custody ... the panel took into consideration the fact that most of the accused had family and that some of them had possessions registered on their name , but these circumstances are insufficient to secure their presence during the investigation , i.e. they do not eliminate the risk of absconding , as well as the risk that the accused may go into hiding or become , otherwise , not reachable.

The detention order is further justified , at this stage of the investigation , with the fact that , if released , the accused may interfere with the investigation by destroying any potential evidence. In this connection it is noteworthy that further oral evidence has to be admitted. If need be , other relevant measures may further be taken ...

Having regard to the risk of re-offending... the panel considers that the manner , circumstances and motives for commission of the offences , as well as the interaction and high degree of coordination between the accused imply that , if released , they may commit the same or other crimes. This risk is further strengthened by the fact that all accused are charged for having committed continuing offences , which suggests that they are prone to undertaking incriminating activities. Furthermore , most accused are still employed ...”

On 19 May 2010 the applicant appealed alleging lack of concrete and individual reasons that would justify his detention . He submitted that he had a family and possessions in the respondent State , that he had been a distinguished university professor with no criminal record , that he had been of an advanced age and had a poor health.

On 27 May 2010 the applicant requested that the court orders a more lenient measure. In this connection he proposed that his passport was seized or be released on bail (an expert valued the applicant ’ s property to EUR 104 , 348). As stated by the applicant , that latter request remained undecided.

On 4 June 2010 the applicant was suspended f rom work. The suspension had the effect since 19 May 2010 (“the dismissal decision”).

On 10 June 2010 Skopje Court of Appeal dismissed the appeals submitted by the applicant and co-accused finding no grounds to depart f rom the reasoning given by the panel.

On 17 June 2010 the panel ordered a thirty-day extension of the detention of all accused providing identical reasoning as before (see above). The detention was based on all three counts specified under section 199 of the Act. It is not apparent whether the applicant appealed against that decision. It appears that in the meantime the order for prison custody was replaced with an order for house arrest in respect of twenty co-accused.

On 16 July 2010 the panel ordered further extension of the applicant ’ s (and of 15 other co-accused) detention in prison custody. Thirty-day extension of the house arrest also was ordered in respect of the remaining co-accused. The extension order (for all co-accused) was based on the risk of absconding and re-offending. The panel gave identical reasoning as before. “The possibility of interfering with the investigation” was no longer relied on as a ground for their continued detention given the fact that the public prosecutor had meanwhile lodged an indictment , which signified that the investigation was concluded. On 23 July 2010 the applicant lodged an appeal against that decision , which the Skopje Court of Appeal dismissed with a decision dated 13 August 2010. It was served on the applicant ’ s representatives on 19 August 2010.

On 13 August 2010 the panel ordered further extension of the applicant ’ s (and other co-accused) detention due to risk of absconding and re-offending. On 17 August 2010 the applicant appealed that no concrete reason had been provided for his continued detention. Furthermore , he had been suspended f rom work which had removed the risk of re-offending. In this connection he submitted a copy of the dismissal decision. With a decision of 13 September 2010 Skopje Court of Appeal dismissed the applicant ’ s appeal refusing to admit in evidence the dismissal decision submitted in copy. It further stated that:

“... the detention in custody ... is the only efficient means to secure the attendance of the acc used at the trial.”

On 13 September 2010 the panel ordered further extension of the applicant ’ s (and other co-accused) detention for the same reasons as before , without individualising the grounds for each accused. It added that it had taken into consideration the complexity of the case , voluminous evidence and the number of accused. In that connection it found that:

“... the panel considers that detention in prison and house arrest are the most efficient means to secure attendance at the trial. They allow fast , efficient and economical conduct of the criminal proceedings , as well as a trial within a reasonable time.”

On 16 September 2010 the applicant appealed and submitted a certified copy of the dismissal decision. On 7 October 2010 Skopje Court of Appeal upheld the panel ’ s decision stating that the reasoning provided had been sufficient. It did not address the applicant ’ s dismissal f rom work.

On 8 October 2010 , of its own motion , the panel substituted the order for detention in prison with an order for house arrest regarding the applicant and 6 other co-accused. It stated that:

“ ... there is still a risk that the accused , if released , may abscond or re-offend. The way in which the offence was committed and the potential penalty support that risk ... ”

On 5 November 2010 the house arrest of the applicant was extended for thirty days. On 11 November 2010 the applicant appealed arguing that the panel had not given specific reasons to substantiate the risk of him absconding and re-offending. In this latter context he reiterated that he had no longer been in office. On 6 December 2010 Skopje Court of Appeal partly upheld the applicant ’ s appeal concerning the risk of re-offending. It confirmed however the panel ’ s concern about the risk of flight relying on the gravity of the charges and the potential penalty.

At the time when the applicant introduced the application before the Court , he was still in house arrest. No further information was provided.

B. Relevant domestic law

Section 22 § 6 of the Criminal Proceedings Act of February 2005 provides for a three-judge panel of the trial court to rule , inter alia , on appeals against decisions of the investigating judge.

The Act specifies the measures which the court may issue in order to secure the attendance of an accused at a trial (sections 185-199).

Under section 198 § 2 of the Act detention in prison should be as brief as possible.

Under section 199 § 1 (1-3) of the Act detention in prison may be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of absconding , interference with the investigation or reoffending.

Under section 200 §§ 1 and 6 of the Act an investigating judge has jurisdiction to order pre-trial detention. The person concerned may appeal before the panel. Under sub-section 7 , the panel is required to decide the appeal within forty-eight hours.

Section 205 §§ 2 and 6 of the Act provides for the panel set up under section 22 § 6 to extend the detention at the request of the investigating judge or the public prosecutor. The extension order may be challenged before the court above.

COMPLAINTS

The applicant complains under Article 3 of the Convention that between 20 April and 8 October 2010 he was detained in prison instead of in the Hospital , as ordered by the investigating judge on 20 April 2010. He further alleges that while detained he did not receive adequate and timely medical care. When he was transferred to the Hospital for check-ups , he was left for hours in a car with no air-conditioning despite the heat during the summer period. He also complains under Article 5 § 2 that he was not informed of the reasons for his arrest. Relying on Article 5 § 3 he complains that he was not brought p rom ptly before the investigating judge; that there were no concrete reasons justifying his continued detention; that his detention was extended by means of collective detention orders , as well as that his detention lasted too long. He further invokes Article 5 § 4 in that his appeals against the extension orders were not decided speedily. Lastly , the applicant complains under Article 7 of the Convention that he was detained in respect of an offence that was not prescribed as a crime punishable at the time.

QUESTIONS TO THE PARTIES

1. Was the applicant brought p rom ptly before a judge in accordance with Article 5 § 3 of the Convention?

2. Was the applicant ’ s continued detention compatible with Article 5 § 3 of the Convention? Was it based on collective detention orders? If so , was it in compliance with Article 5 § 3 of the Convention? Furthermore , were the grounds given by the domestic courts “relevant and sufficient” (see Vasilkoski and Others v. the former Yugoslav Republic of Macedonia , no. 28169/08 , 28 October 2010 )?

3. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

4. Were the review proceedings before Skopje Court of Appeal , by which the applicant sought to challenge the lawfulness of his continued detention , compatible with the “speedy” requirement within the meaning of Article 5 § 4 of the Convention?